Sleeping While Intoxicated-Not a Crime!

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Unfortunately this is not a headline from the online satirical "news" website the Onion, it's not. Instead, it's just one more example of the sad state of affairs in this country when it comes to DUI jurisprudence. As explained in this post at the Albuquerque Criminal Lawyer Blog, until very recently, it was apparently a crime in New Mexico to fall asleep behind the steering wheel of a car while intoxicated:

The New Mexico Supreme Court reversed the Courts of Appeals ruling from last year which legitimated DWI/DUI charges against individuals who were sleeping in their vehicles effectively taking the driving out of drinking and driving.

The court's decision in the case that was just recently overturned effectively held that an intoxicated person found asleep behind the wheel of his vehicle--where there were no keys in the ignition--was in "control" of the vehicle while intoxicated and thus "operated" the vehicle while intoxicated even though he never intended to drive it. The failure to consider the intent of the defendant thus resulted in a ridiculous decision that defied common sense. Fortunately, as explained in the post, the appellate court wisely reversed this inane decision:

The Supreme Court in State v. Simms stated that there must be intent to drive. In effect, there can no longer be a generalized intent to drive as evidenced by proximity to the vehicle. Neither can the issue be couched entirely in the terms of control of the vehicle...The Court in essence adopted the public policy rationale of allowing drivers to sleep off their intoxication.

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Is a car accident alone evidence of intoxication?

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Does the mere fact that an automobile accident occurred warrant testing to determine if the driver was intoxicated? What if the driver of the vehicle left the scene before police arrived? What if witnesses to the crash claimed that the driver was acting erratic? What if the driver was the mayor's son? These are just a few of the questions that arose from a recent automobile accident that occurred in Elk Grove Village, Illinois. As described in this Daily Herald article, the accident occurred in the parking lot of an apartment complex. Witnesses claim that a pickup truck ran into stationary cars parked in the lot. The driver exited his vehicle and was shaking and talking to himself. He then got back into his vehicle, despite the urging of witnesses to remain at the scene, and drove off. His license plate remained behind, however, and responding police officers were able to determine that the vehicle belonged to Craig Johnson Jr., the son of the mayor. Officers then located him that same evening, brought him into the station, questioned him, and issued him a series of tickets for traffic violations, none of which were DUI-related. He was never given a breath test or asked to perform field sobriety tests. Some claimed that he received special treatment because he was the mayor's son. However, Don Ramsell, of our office, explained that Johnson did not necessarily receive preferential treatment:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver hit three parked vehicles, there's no cause to give a Breathalyzer or field sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Still, "it's not like the parked car jumped in front of him," so Johnson should have been asked to provide a satisfactory explanation for the crash, such as bad weather or a sudden obstacle in the road, Ramsell said.

In Illinois, the odor of alcohol combined with an accident is enough probable cause for a breath test, Ramsell said.

So, an accident alone isn't sufficient evidence to support the inference of intoxication. And in this case, there were no allegations that the driver smelled of alcohol, so perhaps the police were justified in not administering a breath test or sobriety tests. A further review of police records would assist in making this determination, but as it stands, based on the facts known at this time, the actions of the police weren't necessarily suspect.

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Some people can't hold their liquor

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Apparently, cops, guns and alcohol just don't mix. We learn this lesson straight from the heart of Texas, where it was reported last week via Fox News that a highly intoxicated Dallas police officer fired her gun into the floor of a police vehicle. From the article:

According to the Dallas Police Department, Officer Kelly Beemer was off-duty and heavily intoxicated when another off-duty police officer tried to help her into his personal vehicle.

When Beemer attempted to exit the moving vehicle, two officers who were on-duty came to the scene.

Beemer was seated in the back seat of Officer Zachary Helm’s squad car when she unfastened a revolver strapped to her ankle and fired into the back right floorboard, police said.

It seems this cop was as loaded as her gun! Fortunately, no one was hurt and an investigation is pending in the matter. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

More flawed tests result in wrongful DUI convictions-this time in DC

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First we told you about the faulty DUI lab test results in Pennsylvania, then Colorado, California, and Indiana. The latest is Washington, D.C., where it was recently reported that hundreds of DUI convictions were based on flawed breath test results. The Washington Post reported earlier this month that since the fall of 2008, nearly 400 people were convicted of DUI based on evidence obtained from the faulty machines, and nearly half of the people convicted were incarcerated. The breath test machines were working improperly because the police calibrated them incorrectly. As explained in the Washington Post article:

The District's badly calibrated equipment would show a driver's blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.

One of the difficulties in defending DUI cases is that jurors generally presume that scientific results, obtained from blood tests and breath test machines, are accurate and infallible. The truth is, they're not. In the past we've pointed out instances of flawed lab testing where blood tests were determined to be inaccurate long after people were wrongfully convicted of DUI. Now we learn that, like lab test results, breath test results can be inaccurate due to faulty equipment and human error. Innocent people's lives are turned upside down because of DUI prosecutions and convictions. When DUI prosecutions are based on inaccurate scientific results that could have been prevented if more care had been taken, it's an outrage. These errors aren't simply unfortunate--they're travesties of justice. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Tip of the day

Next time, send a cab: Thanks to the Fail Blog. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

More DUI convictions suspect--this time in California

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Yet again we're reminded that lab test results used to convict individuals accused of DUI are anything but perfect. Just last week we learned that in Colorado Springs, lab test results were being thrown out due to allegations of hundreds of errors made by a lab technician. This week brings yet another example of the inaccuracy of lab test results in drunk driving cases. This time, DUI convictions in San Francisco, California may turn out to be based on lab testing that was performed improperly. In late May, the Seattle Times reported that a San Francisco coroner's supervising toxicologist, Ann Marie Gordon, had a history of improper conduct in Washington state. It was revealed that prosecutors had previously told a Washington court that, while Ms. Gordon ran the state's toxicology lab, she had been a "perpetrator of fraud." As explained in the Seattle Time article:

From 1999 to 2007, Gordon ran the Washington state toxicology lab, whose main job was to analyze tests in drunken-driving cases. The lab was shut down after state agencies discovered that Gordon had vouched in court for the reliability of alcohol-detection equipment when she had not performed the tests herself.

In San Francisco, Gordon has signed sworn statements verifying hundreds of blood-test results, mostly in drunken-driving cases...since being hired in 2008. She has also testified in trials.

Prosecutors say they were unaware of her Washington history until April.

Because of the accusations against Ms. Gordon, over 100 criminal cases were dismissed in Washington and she quit her job in 2007. Now that her prior history has come to light, pending cases in San Francisco are being subjected to greater scrutiny. This case is yet another example of the problems inherent in many of the crime laboratories across this country. Between tainted tests, sloppy lab work, and improper procedures, the accuracy of the lab test results are questionable at best. Likewise, equally as questionable are the DUI convictions resulting from these tests. We deserve better. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Colorado Springs Crime Lab-Another Case of Sloppy Testing

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Another day, another crime lab making sloppy errors that deprive innocent people of their liberty. This time it's the Colorado Springs crime lab. In April, the Colorado Springs crime lab errors were disclosed to the public. It was revealed that the results of an internal investigation revealed that 167 tests were flawed in 2009 and discovered 39 more flawed tests from 2007. All of the errors were the work of a chemist who had since left the department. District Attorney Dan May explained that "only" 9 of the 206 faulty tests actually affected the rights of those accused of committing a crime. In other words, only 9 people that we know of--people who were potentially innocent of any crime--had their lives ruined because of the egregious errors of Colorado Springs lab technician. Questions still remain following the announcement of the massive string of errors, as explained in this article from the Colorado Springs Independent:

Senior chemist Bobby Striebel frankly says he can't explain how a colleague of seven years made mistakes that boosted the alcohol content of some blood samples by more than 40 percent.

"The error was very difficult to identify," he says, with no apparent pattern or equipment failure to explain.

The lingering uncertainty is uncomfortable. Tim Bussey, a Colorado Springs defense attorney who specializes in DUI cases, puts it bluntly: "If they never really identified the problem, how do they fix it?"

These tests were caused by human error or malfeasance. Who knows how many errors are caused by faulty equipment or materials. The bottom line: blood and breath testing for DUIs is a horribly inaccurate "science" for any number of reasons. The continuing pattern of errors in labs across the country is simply further evidence of that fact. Perfection isn't possible and it's not required, but predictable accuracy is. Until that standard is met, innocent people will be convicted of drinking and driving offenses and injustice will continue to reign supreme. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!